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East Lyme zoning commission ordered to review regulations

East Lyme - The latest court ruling in the 10-year saga of the possible development of the Oswegatchie Hills is being called "a mixed decision" by the town attorney after a Superior Court judge remanded portions of the case back to the Zoning Commission.

An Oct. 31 opinion by New Britain Superior Court Judge Stephen F. Frazzini has ordered the Zoning Commission to review its regulations that governed its 2005 decision to deny an application by developer Glenn Russo to build affordable housing on a parcel of land on Oswegatchie Hills.

Russo said Tuesday that the court " made the right decision."

"We're going to move to take the next steps in the development process," Russo said.

The most recent ruling is contrary to Superior Court decisions in 2004 and 2008 that found the town was justified in denying Russo's application to build affordable housing condominiums, based on a number of factors including incapability with the town's development plan, inadequate sewer connections, and environmental and traffic concerns.

Town Attorney Ed O'Connell said Tuesday that Frazzini's ruling "is not a final decision," and therefore neither party can appeal it.

Also, the ruling did not impose a specific timeframe on the Zoning Commission to re-examine its regulations.

Frazzini's decision addressed three separate matters in Russo's 2005 application to build a 850-unit complex in 24 buildings on 35 acres on the western boundary of his property, that will subsequently be reviewed by the commission. Those matters are zoning amendments, a zoning change, and the site plan, the later of which incorporates issues such as potable water, traffic and environmental impact.

The ruling stated that there was insufficient evidence for the commission to deny amendments regarding buffers between multifamily zones. But the court also found that there was sufficient evidence for the commission to deny the amendments "in their current form because those amendments as currently drafted would have allowed a developer to obtain approval of an affordable housing development without the commission ever knowing whether the development would cause environmental or coastal damage."

The court ruled there was insufficient evidence for the commission to deny a zone change that would have allowed for the proposed density on the site because of lack of public sewers.

But the court also ruled there was evidence in the record to support the commission's reasons to "deny a zone change for the entire Landmark property based on preserving open space and preventing adverse environmental impact on environmental and coastal resources."

Finally, with regard to Landmark's site plan, the court found there was "not sufficient evidence in the record to support lack of sewers as a reason for denying a conceptual site plan."

Although, later in the ruling, the court said there was evidence to support "the commission's denial of the conceptual site plan on the grounds that Landmark has not yet shown adequate potable water available to serve the development."

The court also ruled there was insufficient evidence "to deny the conceptual site plan on the basis of preserving open space," as the proposal would leave more than 200 acres of open space in the Oswegatchie Hills, which is "the same amount designated by the town's most recent plans in the record as open space."

The court also said the record does not contain sufficient evidence to support rejecting the claim based on traffic from the Golden Spur neighborhood or on possible coastal damage.

The court also said the commission was not justified in denying the application based on the environmental issues because "such harm could have been protected by a reasonable change" that would require Landmark "to present information pertinent to environmental of coastal harm in subsequent applications."

The decision said that town regulations not require an applicant to provide such information when submitting a conceptual plan.

The Zoning Commission is scheduled to meet Thursday at 7 p.m. at Town Hall, but the lawsuit is not on the agenda.

s.chupaska@theday.com

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